The Linux Kernel and Software Patents 629
batsman writes "The Linux VM system programmers are discussing the software patents that could block further development of important features. Alan Cox brings up several SGI patents covering the techniques they were considering, and Daniel Phillips has found some patents that affect features already present in Linux. Linus Torvalds thinks they should ignore these patents and pretend they don't exist until they cause troubles. How long before kernel developers are sued for patent infringement?"
Ridiculous (Score:2, Interesting)
Not a big deal. Don't worry. (Score:4, Interesting)
Also, kernel.org releases the SOURCE code. And it's more of a "reference implementation" or "proof of concept" than anything else. If someone actually COMPILES the kernel without first removing patented techniques, well, that's their own problem.
Who is sued? (Score:5, Interesting)
This brings up an interesting question. Who gets sued in this kind of situation? The one who writes the code, the one who compiles it, the one who distributes it or the user? Technically, there shouldn't be anything wrong with the source code itself, since it is not a product or a device. An example is that the ISO source code is freely distributable, even though there are many patent problems. Now it's it's not the developers, who is it? Unisys seems to have tried going after GIF users (web sites), while some others seem to try differt approaches. This is one really bad thing about software patents.
Not time to condemn yet (Score:5, Interesting)
Developers are not off the hook (Score:4, Interesting)
His freely available illegal implementation decreased the market value of the legal version, and can be held responsible from the patent publication date, not from the date he is notified of infringement.
This also assumes that the patented algorithms were released publicly before the patent was filed. Also you can't ignore a known patent infringement for many years. Like trademark infringement, you must act when you gain knowledge of infringement.
IANAL, this is my understanding of patent law in the US.
Linus is right (Score:5, Interesting)
(OK, maybe Linus wasn't right about the hit man thing. A hit man might be cheaper than an IP lawyer, but murder really IS unethical, and besides, you'd have to wipe out the whole corporation, and that gets almost as expensive as a lawsuit. But I assume Linus was speaking tongue-in-cheek there)
Linus gives better explanation in a follow up. (Score:5, Interesting)
>
> This issue is more complicated than you might think.
No, it's not. You miss the point.
> Big companies with
> big pockets are very nervous about being too closely associated with
> Linux because of this problem.
The point being that that is _their_ problem, and at a level that has
nothing to do with technology.
I'm saying that technical people shouldn't care. I certainly don't. The
people who _should_ care are patent attourneys etc, since they actually
get paid for it, and can better judge the matter anyway.
Everybody in the whole software industry knows that any non-trivial
program (and probably most trivial programs too, for that matter) will
infringe on _some_ patent. Ask anybody. It's apparently an accepted fact,
or at least a saying that I've heard too many times.
I just don't care. Clearly, if all significant programs infringe on
something, the issue is no longer "do we infringe", but "is it an issue"?
And that's _exactly_ why technical people shouldn't care. The "is it an
issue" is not something a technical guy can answer, since the answer
depends on totally non-technical things.
Ask your legal counsel, and I strongly suspect that if he is any good, he
will tell you the same thing. Namely that it's _his_ problem, and that
your engineers should not waste their time trying to find existing
patents.
Linus
I Have a question (Score:2, Interesting)
Workarounds (Score:2, Interesting)
If there was a nearly complete workaround that could be put into place quickly, then the 'we'll ignore it until we get a piece of paper with lots of lawyers names at the top' strategy might work. I could live with a 'patch this for a 25% speed reduction coupled with a 100% lawyer reduction a lot more than a 'stop it now' for a month, and then only a 5% speed reduction. The key is to keep things working while corrections are being made.
For the trolls out there, I know you can keep using the binaries you allready have, and there will probably be MORE mirrors after a lawsuit, but I really want to keep things legal, as I am sure most readers here do. Corporations HAVE to. A good backup plan is worth more than a little grey area now and again.
-Charlie
patents and Mutual Assured Destruction (Score:3, Interesting)
Bonus question: if I attempt to enforce a patent used in GPLed code, what happens? Do I lose my rights to use/distribute that GPL code? Is the copyright and GPL on that code unenforcable?
Re:Not time to condemn yet (Score:5, Interesting)
The method they patented, if you removed reference to memory, would also cover:
1) Forward and Backward pointing link list
2) Node Balancing in B-Trees
And that is just the tip of iceburg.
It is time to remove US Patent Office from the software business, they have proven over and over they inability to allow only real inventions in software development. Else the other chose could be is require the Patent Office and its examiers to pay ALL cost and triple damages when they fail to do their jobs.
For Jordan Hubbard's take on patents and FreeBSD.. (Score:5, Interesting)
We should use this to stop patents in Europe (Score:2, Interesting)
You are completely exposed to this liability and to the courts, it's a clear cut as if you went and robbed someone with 10 witnesses plus video tape. What if Microsoft bought the patents, and then sued Linus? This would be a perfect way of killing off Linux as we know it.
Unless you moved yourself and the code back to Europe where I believe there are no patents on software (yet...) I believe that you MUST follow the rules for US patent law.
Actually, this might be a good case for why Europe should not adopt software patents. If Linus were to publicize the problems that he encountered because of software patents and especially American software patents, maybe that would stop the Europeans from implementing them. This is because Americans have had a leg-up on the Europeans due to the already-patented software patents, and could use all the patents they currently have to block European software development, much like Linux kernel development is being blocked by patents. Maybe this is just the thing we need!
Simple Remedy (Score:2, Interesting)
I wouldn't want to go toe-to-toe in a tit-for-tat on patents with Big Blue, no siree.
Re:Keeping things equal (Score:5, Interesting)
1) There are no truly unique inventions. Everything is an evolution of everything else.
2) The car was patented. While the patent of the car was active cars were not built and they were low quality, etc. Ford got around the patent and made cars that everybody could buy and drive. Windsurfers were patented. The company windsurfer held onto the patent and in the last couple years of the patent sued the hell out of companies. Result companies went under and Windsurfer took the money and ran. Sure the original patent holders invented the car and windsurfer. But those same inventors did nothing to further the invention.
3) Time has shown again and again that ideas or concepts are worth nothing. Execution is worth everything. There are hardly any companies that survive only on patents. If you look at most big companies they survive because they know how to run a business.
4) Now and the future the only ones penalized by patents will be the "western" world. The rest of the world does not care about patents and they clone, etc. Why? Because patents introduce a penalty that only the "western" world can afford.
"non-obvious to a skilled practitioner" (Score:3, Interesting)
if someone, or several someones, without knowledge of said patent, come up with the same solution to the same problem, then it clearly fails the non-obvious test, and as such is not a valid patent.
seems like these patents would get thrown out on that basis.
Linux Kernel and Patents (Score:2, Interesting)
Switch on Somebody-elses-problem Field (Score:2, Interesting)
Ignorance is bliss......
Re:Keeping things equal (Score:3, Interesting)
2) There has, as far as I am aware, been only one Thomas Edison. Perhaps there are reasons? You might consider them.
3) Patents are advantageous to those who hold them AFTER they hold them IF they have enough money to defend them. These conditions are not commonly met among inventors. Patents have been described as "a license to sue and be sued". This is nearly correct, but it ignores the effects of patent pools, which only serve to increase the degree of monopoly in an industry.
4) Were I to accept the limited degree of benefit that you ascribe to patents, I would still need to consider the costs that they impose. And these costs are formidable.
My general conclusions are that the US patent system is so broken that we would be better off without any at all. I also feel that a limited patent system might be desireable, in which patent pools should be explicitly prohibited and if a patent was ruled "silly", then the defense fees would need to be paid by the clerk that granted the patent. And that no penalties could be collected under a patent until a panel of experts in the field ruled that it was non-obvious. These experts to be selected by lot from a population that volunteered (for some minimal recompense) and declared at the time of volunteering what their field of expertise was. This is not sufficient to totally rule out silly patents being enforced, but is obviously better than the current system. Also, that this same panel could throw out any patent on the grounds that it was too broad. Not just decline to enforce some particular provision, throw out the entire thing.
But even with these limitations, I am dubious that a decent patent system could be constructed. The examiners are required to be specialists in too many disciplines, and this is clearly impossible.
I'm not sure about the US but ... (Score:2, Interesting)
Code Anonymously (Score:2, Interesting)
Re:Keeping things equal (Score:2, Interesting)
As he says, he has no problem with you violating his IP - he does not think software engineers should concern themselves with such things.
Patent law is a big issue (as I'm sure any ./ reader knows) to the OS community - the internet has broken down barriers which were there artificially before and this has accelerated (along with capitalism and the desire to make a quick buck regardless of ethics) the usual problem of laws only holding up after being suitably challenged.
If I patent software, and in 50 years we discover aliens from Mars have implemented the same thing, can I sue them, even though they couldn't have known about it? (assuming of course they haven't been intercepting our broadcasts for years...) Obviously not. How then can I sue some guy in another continent/country/state/town who happens to have had the same idea? We're not talking about the same code, or the same song, or the same book a la copyright - just the idea.
The point is there are large grey areas - the laws are there to protect someone copying someone else's work at the first person's expense, but they do not take into account that two pepole can have the same idea. What if the first person who discovered it had patented fire? ACtually, I can see next week's slashdot headline as someone realises there are no previous claimants and does so...
And the worst side of it is: the companies/people who patent things which are known about but not previously patented. That's using the whole protection of ideas thing but potentially against the original designer.
Re:Keeping things equal (Score:3, Interesting)
Will all scientific information become a trade secret? Some yes and guess what there is plenty that is a trade secret anyways. Why? because even with patents once the cat is out of the bag it is out of the bag.
Patents could have protected a small inventor from true monopolizers, but in fact the small time inventor is hurt by patents today. These days to get a world wide patent costs several hundred thousand dollars. In the EU it costs about 30,000 Euros and in the US about 20,000 dollars. This is not money that a small inventor has. However, it is something large corps can afford. And then large corps use that money to fend off competitors. In other words a big corp can be inefficient.
Now I am going to throw you a concept. Imagine that there was no patent protection and there was rampant cloning or evolution? Could an industry survive? Absolutely... Examples include, books, music, sports, fashion, food (wine, beer, spirits), etc.
All of these industries are based on selling a product to make it interesting for the client. For example how many receipes are there for mashed potatoes? But yet people buy receipe books in droves. Or what about jeans? Remember when jeans were are all the rage in the eighties and jeans were cloned rampantly? Or how about sports? First people started with simple surfing, then skate boards then roller blades, etc. THAT is true innovation not hampered by patents!
About IP theft, and wanting to eat? Gee whiz, but I think the engineers still eat in those industries. The difference is that the engineers have to actually be part of a business. A monopoly grants the inventor a license of bad business and money gouging.
Anyone who thinks only the US grants bad patents (Score:2, Interesting)
Re:Not a big deal. Don't worry. (Score:3, Interesting)
C//
Re:Not a big deal. Don't worry. (Score:3, Interesting)
"Why worry about the US, its only 4% of the population"
I guess the fact he was chinese gave him a rather more balanced perspective on life. For the SGI patents it appears that SGI have already shipped code under the GPL using those patents so it should be a non issue.
However in the USSA you cannot simply ignore the problem. A kernel which is known to violate patents isnt shippable by vendors, and Debian would have to cease using it in the USSA too. Debian is going to be in a tricky position if the kernel is in the non-US packages.
Could we end up with a world where the US is the one nation that can't use free software - ultimately thats quite possible. After all the US has many other fields where some large corporations systematically obliterated any small competition.
Re:Linus is a fucking asshole. (Score:2, Interesting)
However, if you knowingly go forward with something that you know MAY be infringing a patent, you are inviting the patent holder to press his/her rights and prevent you from doing it, perhaps at great cost to you. Whether you agree with the underlying laws that allow this to potentially occur or not, you are foolish to simply ignore them.
In New York it is actually legal to appear topless in public. In other states it is not. If a woman goes to Alabama, which we'll assume for the sake of argument has a law forbiding this activity, and walks down the street topless even though she knows it's against the law, that's a stupid thing to do. She might get swau with it because maybe no one will press charges (very likely if only men see here!), but it's still inviting trouble.
The argument that you did not know about a patent and you therefore did not infringe it, is a weak legal position to take. You may in fact be able to win a case based on that, there may even be precedence for such a ruling, but it's a weak position and banking on winning on it isn't a bright idea.
And in this case, Linus and the other involved folks DO know about the patents. They may not have read them, but let me put it this way... I'd LOVE to be the lawyer representing the plaintiff in a case against Linus here. I'd claim that he knew there was a patent he may be infringing and did not go through due dilligence to prevent the infringment and is therefore as guilty as someone who had read the patent and ignored it. Don't know if I'd win, but I'd feel very good about my case going in.
Finally, your assertion that I made a complete fool of myself is ridiculous. My point was that Linus is a fucking asshole in this instance, and I stand by that completely. You are correct, it seems that he is not breaking any laws at present based on the definition you cited of patents, but he is most certainly inviting potential legal action by a legitimate (presumably legitimate anyway) patent holder. He in in fact flaunting the fact that he actively ignores patent holders and their IP rights because he does not believe in the concepts underlying the laws. This is, in my view, an extremely stupid position to take and potentially very unhealthy from a legal standpoint. Nothing may ever come of it, and he will look right and I will look wrong. That doesn't change the fact that he is putting himself at risk for his principals. Fine, he has that right. And others have the right to sue him and ruin him financially if they so wish. He knows this, and chooses to put his head in the sand. This, to me, is the definition of a fucking asshole.